The clarion. [volume] (Jackson, Miss.) 1883-1888, 1887-03-09
supreme COURT CASES
october Term-Isse-
STATE OF MISSISSIPPI


Appeal from the decision of Hon. j. H.
Wynn, Circuit Judge, the cause being
heard in vacation.
Cutrer & Cutrer, for the appellant.
ID. A. Scott and George Winston, Tor
the appellee.
On March Is, 1856, bill was
passed entitled " an act to sub
nit to the qualified electors OF
Coahoma county, the question OF the
removal and location anew, of the coun-
ty site, of said county" and providing
that special election be held on the
FIRST Tuesday in August next, to deter
mine the question. On March 10, 1880,
this bill was presented to the Governor
for lis approval, On March is, 1886,
the Legislature adjourned sine de. On
August %. 1886, the Governor approved
and signed this bill and put it in the
hands of the Secretary of State. On
December Is, 1886, the board OF super
visors of Ceahoma county refused 10
order an election in accordance with this
bill to be held ON January 4, 1881.
Thereupon, on January s, 1887, the
State, on the relation of its Attorney
General, I. NJ. Miller, by petition,
PRAYED a writ of mandamus to compel
the board of supervisors to order an
election to be held at as early day as
possible, under and in accordance with
the provision of this act.
| The board of supervisors by plea, said
that the prayer of the petitioner should
| not be granted, % because the act IN
question never became a law; ~ IT 1t
did become a law, that the time Tor
| holding such election had passed, to-wit:
the Second Tuesday in August next,
| meaning August, 1856. The judge dis
missed the petition, and the petitioner
appealed. The judge granted the appeal
| without requiring bond. There was a
motion here to dismiss the appeal be-
cause of the failure of petitioner to give
the usual appeal bond.
CAMPBELL, J., delivered the opinion OF
| the Court.
The State had the right to appeal
without giving an appeal bond, Code
$685. Were this not true, the appeal
would not be dismissed, but bond OF
deposit would be received, and the APP
peal be maintained. In no case can q
party lose the benefit of an appeal by
any error as to the manner of appealing
The appeal may be perfected here, Code
| 2 1907 The motion to dismiss the ap
peal is denied.
The record presents the question
whether bill which has passed both
Houses and been signed by their re
spective presiding officers and presented
to the Governor within five days OF the
adjournment of the Legislature may be
signed by the Governor and thereby be
made law from that time, after the
adjournment of the Legislature? In
Hardee a. Gibbs, so Miss, 500, this ques
ton was answered in the negative, but
we have no hesitation to override thi;
decision, which is not supported by rea,
son or authority, and plainly shows &
lack of attention to or comprehension oil
the language of the constitution. The
postulates o. the opinion in that case Ii
that the Governor in approving bills l;
a component part of the Legislature
and his signing a bill is a legis
lative act, and therefore it was said he
has no more power to legislate in vaca
ton than either House of the Legisla
ture Grant that the Governor in sign
ing a bill, and thereby evidencing his
approval, does perform a legislative act
it is as Governor that he acts, as pre-
scribed by the constitution, and he Il
Governor, after the adjournment of the
Legislature, as much as before. The
constitution makes the Governor an
agent in making laws. Every bill
passed by the two Houses is to be pre-
scented to him. If he approves he shall
sign it; if not he shall return it with OBJ
iections, within five days Sunday ex
cepted) to the House in which it origi-
mated, and it shall be a law, without lis
signature, unless the Legislature by
adjournment prevent, in which case il
shall be law, at the end of three days
after the next meeting of the Legisla.
ture, if not sent back by the Governor
with his objections in that time. The
scheme of the constitution is that the
Legislature and the Governor shall
make laws, and it prescribes how this is
to be done. The two Houses compose
the Legislature. 1t is to pass bills, and
they are to be presented to the Gov
ernor, who is to sign, if he approve, or
return with his objections, if he does
not approve; and that he may have
time to determine his action, five days
| SUNDAY excepted) are allowed him dur
ling the session of the Legislature in
which to consider each bill, which is to
| be a law by t.le lapse of that time, during
| the session of the Legislature, with or
| without his signature, on the assumption
| that, if he does not return the bill, as he
may with his objections, he approves it.
| While the Legislature is in session laws
are passed by majority of each House
with the approval of the Governor ex-
pressed by his signing or implied by his
| failure to return the bill with objections
| in the five secular days allowed him or
| by two-thirds of each House, notwith-
standing his objections. But, if the
| Legislature by adjournment before the
Governor has had five days to act on the
| bill prevent return of it with his OBJ
| ieetions, he is allowed all of the time
before the three days after the next
meeting of the Legislature shall expire,
to send back the bill disapproyed, and,
| if he does not so return it, 1t shall be a
| law, by mere efiiuxion of time. Il forti-
| orr should it be a law, when the Gov
ernor approves and signs it. 1t has then
received the constitutional impress
which makes it law. 1t passed both
Houses, it was presented to the Gov
ernor, he approved it, and he signed it
This is what the constitution says shall
make law. There is not word in the
constitution to suggest that the Gov
ernor, whose functions as such are not
| dependent on sessions of the Legislature
or limited to them, shall be limited to
| the period of the session of the Legisla-
ture in performing his agency in making
laws.
He must return bill with his obiec-
tions in five days, during the sess on of
&he 7 will ha q lou hr,t
this gives no countenance to the propo.
sition that because the Legislature ad-
iourns within the five days allowed him
for considering bills during its session,
he may not act as Governor, and sign
the bill, which only lacks his approval
to complete the several stages prescribed
by the constitution for it to become a
law. A time is prescribed by the con
stitution in which the Governor may
return bill with his objections. That
time is FIVE days during the session of
the Legislature, and the whole interval
between adjournment and three days
after the next meeting of the Legisla-
ture in case of bills presented to the
Governor within five days after the
adjournment of the Legislature. No
time is prescribed by the constitution in
which the Governor shall sign, if he
approve. Manifestly, as be may return
with objections in FIVE days during the
session, he may sign any day during that
time, and as he may return with his OBJ
jections within three days after its next
meeting, in case the Legislature by adj |
journment prevented its return latter |
the time for consideration and before |
adiournment) during its session, he may |
sign the bill any day of the period |